Madonsela is right to review SABC judgment

2014-10-29 10:13

TO Molefe

Nevermind that the actual case before the court was in itself significant, the
showdown between the Democratic Alliance and the SABC at the Western Cape High
Court last Friday was a proxy battle over Public Protector Thuli Madonsela's
Nkandla report.

On
everyone's mind, as judge Ashton Schippers delivered his judgment in that case,
was remedial action 11.1.2. in Madonsela's Nkandla report, wherein she said
president Jacob Zuma must pay back a reasonable portion of costs the
non-security-related aspects of the upgrade to his Nkandla home.

President
Zuma has repeatedly denied benefitting unduly from the upgrade. Earlier this
month, he suggested that his role in the Nkandla security upgrades scandal has
been blown out of proportion by the media, whom he accused of wilfully ignoring
the report of the Special Investigating Unit.

“Why don't you write that the SIU absolved the president of responsibility? Now
everyone's saying Zuma ate the money,” he said to members of the press,
according to Beeld.

Presumably
he is referring to the SIU's finding that he did not request the upgrade. This
is a selective reading. The same report also said the president and his family
had been enriched by increase in the scope of the upgrades to his Nkandla home.

Given
all these straws he's grasped to escape his share of responsibility, the
president and the people who've mobilised to protect him from the Nkandla
security upgrades fallout were surely watching last Friday's case keenly. Up
for consideration was how binding and enforceable the Public Protector's
findings are, but the ramifications of the case go beyond the actions of
high-profile politicians and public representatives like president Zuma.

DA vs SABC

The
DA had hauled the SABC and eight others to court over the SABC board's refusal
to implement the remedial actions in another of Madonsela's reports; one in
which she directed the board to take disciplinary action against the public
broadcaster's then acting Hlaudi Motsoeneng. But instead of taking disciplinary
action against him, the SABC board promoted him from acting to permanent chief
operations officer.

Judge
Schippers ruled that organs of state like the SABC can't simply ignore the
Public Protector's findings without providing cogent reasons that go beyond a
preference for their own point of view on the matter. They cannot, in other
words, simply agree to disagree with the Public Protector.

Thus
he ordered that the SABC board suspend Motsoeneng and institute disciplinary
hearings against him, as directed by Madonsela.

But
the part of the ruling that likely caught the attention of the president and
his defenders is what came before, where the judge said: “Unlike an order or
decision of a court, a finding by the public protector is not binding on
persons and organs of state.”

Constitutional
law professor Pierre de Vos explained on his blog that taken in its entirety, the ruling
means than an organ of state needs to provide cogent reasons before it rejects
the findings or opts not to comply with the remedial actions in a report of the
Public Protector. The SABC provided no cogent reasons so it lost when the DA
approached the court, which effectively made Madonsela's finding an order of
the court and thus binding in that narrow sense.

Equally,
as none of the organs of state and public representatives involved in the
Nkandla upgrades have provided cogent reasons for why president Zuma should not
pay back the money as directed by Madonsela, they are likely in for the same
outcome.

Accountability is not wasteful

This
hasn't stopped the African National Congress, which has long argued that the
Public Protector's findings are not binding and enforceable, from claiming that
the judgment has vindicated its position. However, the judgment has done so
only in so far as how binding and enforceable the findings are relative to an
order of the court.

Perhaps
the judge ought to have phrased it as follows: “A finding by the public
protector is not binding on persons and organs of state in the same way as an
order or decision of a court, but it is nonetheless binding and must, in the
absence of cogent reasons to the contrary, be complied with.”

This
makes it clear that it's matter of degree. I suspect it will all become clearer
when the judgment is brought to court for review as requested by the Public
Protector-a decision that has not escaped the criticism of the ANC, which has
described it as a waste of public funds.

But
in requesting the review, Madonsela is acutely aware that the vast majority of
the 40 000 cases her office is currently dealing with do not involve high
profile politicians and public representatives whose non-compliance will be
kept in the spotlight by trenchant MPs chanting “pay back the money” in
Parliament or enterprising journalists on the hunt for a Sunday lead. They
involve complaints by ordinary people against municipalities, public entities
and provincial departments that have failed in their mandate to provide
services.

It
would be impossible and manifestly unjust to expect these complainants to approach
the court, as the DA did, if the organ of state involved ignores the Public
Protector's findings and remedial actions. Taking the judgement on review is a
waste of money only if you believe justice and a responsive, accountable
government should be the exclusive domain of those with the financial means to
turn to the courts for help when the government has failed to deliver.

Disclaimer:
News24 encourages freedom of speech and the expression of diverse
views. The views of columnists published on News24 are therefore their
own and do not necessarily represent the views of News24.

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Tell us a bit about yourself:

Saving your profile

Settings

News24 allows you to edit the display of certain components based on a location.
If you wish to personalise the page based on your preferences, please select a
location for each component and click "Submit" in order for the changes to
take affect.

Your Location*

Weather*

Always remember my setting

Saving your settings

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.